Archive for the ‘Class Actions’ Category
Yesterday District Judge Lasnik of the Western District of Washington granted Avvo.com’s motion to dismiss the class action complaint filed against the site earlier this year, ruling that the plaintiffs’ claims were barred by the First Amendment and Washington’s Consumer Protection Act (“CPA”). If you aren’t familiar with the case,
Plaintiffs’ primary challenge is to the accuracy and validity of the numerical rating system used by Avvo to compare attorneys. Defendants assert that the opinions expressed through the rating system, (i.e., that attorney X is a 3.5 and/or that an attorney with a higher rating is better able to handle a particular case than an attorney with a lower rating), are absolutely protected by the First Amendment and cannot serve as the basis for liability under state law.
Directing that “the key issue is whether the challenged statement could ‘reasonably have been interpreted as stating actual facts’ about plaintiff,” the court found in favor of Avvo. Among its findings-
- Avvo’s website contains numerous reminders that the Avvo rating system is subjective. The ratings are described as an “assessment” or “judgment,” two words that imply some sort of evaluative process.
- Neither the nature of the information provided nor the language used on the website would lead a reasonable person to believe that the ratings are a statement of actual fact.
- [T]he Avvo rating system is an abstraction. (“No reasonable consumer would believe that Avvo is asserting that plaintiff Browne is a ‘5.5.’”)
- [D]efendants’ rating is . . . virtually impossible to prove wrong.
- Defendants fairly describe the nature of the information on which Avvo’s ratings are based and make it clear that (a) there may be other relevant data that the rating does not consider and (b) the conversion of the available information into a number involves judgment, interpretation, and assessment.
- Consumers and the attorneys profiled have access to the underlying information and, while they may disagree with a particular rating and/or the implied comparisons drawn therefrom, “[t]here is no objective standard by which one can measure an advocate’s abilities with any certitude or determine conclusively the truth or falsity of [Avvo’s] statements . . . .”
Thus “[t]o the extent that [plaintiffs] seek to prevent the dissemination of opinions regarding attorneys and judges . . . the First Amendment precludes their cause of action.”
The opinion also includes an analysis and rejection of related claims under the CPA (plaintiffs also argued that (i) Avvo mischaracterized its rating systems, (ii) some of the data included in profiles is inaccurate, and (iii) Avvo’s overall business model is coercive). The court declined to address Avvo’s Section 230 defense, noting that “[p]laintiffs have disavowed any claim based on content that Avvo obtained from a third-party.”
Interestingly, the court seemed to leave the door open to claims against Avvo by individuals who rely on Avvo ratings to their detriment (“Consumers who were misled by the information and ratings provided by Avvo are the direct victims of the alleged wrongdoing.”) However, the remark was made while observing the remoteness of plaintiffs’ asserted damages, and may more properly be construed to mean that consumers directly harmed by an Avvo-rated attorney’s conduct would have a stronger position under the CPA than the plaintiffs do here, and that such a consumer claim would be made against the subject attorney.
Plaintiffs’ request for leave to amend their complaint was denied, so perhaps the Ninth Circuit will be the next stop for their claims.
Eric Goldman and Venkat Balasubramani previously blogged about the filing of a class action suit against Facebook earlier this year in California. My thoughts after reading the complaint several times was that while I agree that Section 230 would likely immunize Facebook for the content of unwelcome text or SMS messages, the statute would not necessarily protect Facebook from potential liability for the mechanism itself and/or related policies. Well, don’t expect answers to these questions any time soon.
While it has apparently not yet been entered by the Court, yesterday Facebook filed a Stipulated Entry of Judgment of Dismissal with Prejudice and General Release. Per the stipulation, Facebook has agreed to implement a “notice system” whereby it will provide text message recipients with a way to stop receiving such messages from Facebook (although the stipulation contains some language suggesting that this notice will only be included in every 15th message transmitted by Facebook), identify Facebook as the sender of such messages, and press mobile carriers to utilize “deactivation logs” to reduce the frequency of undesired text messages transmitted by Facebook. Facebook has also committed to pay plaintiff and her attorneys in amounts to be determined by the Court.
No doubt Section 230 would have found its way into a Facebook motion and/or answer, given Facebook’s assertion in Paragraph 8 of the stipulation that it didn’t do anything wrong, and that “it is immune from any liability under the [CDA].” (emphasis added)
UPDATE: On January 23, 2008, Judge Fogel entered a dismissal order terminating this case.
In 2005 Florida resident Robert Anthony filed a class action lawsuit against Yahoo! in the Northern District of California. Anthony’s complaint, as amended, alleged that Yahoo! created and perpetuated false and/or non-existent profiles on its on-line dating services (Yahoo! Personals, which Yahoo! states has “millions of users”, and Yahoo! Premier), with the intention of fooling people into joining the services and renewing their memberships. Anthony’s causes of action included breach of contract, fraud, negligent misrepresentation and violations of Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”).
In a March 2006 order Judge Ronald M. Whyte granted Yahoo!’s motion to dismiss the contract claim (“Anthony cannot identify any contractual term that requires Yahoo! not to create or forward false profiles.”), but denied the motion as to the fraud, negligent misrepresentation and FDUTPA claims. Yahoo! had argued that such claims were barred by Section 230, but the court noted that Anthony alleged that Yahoo! created the false profiles and sent them to users, rendering Section 230 inapplicable.
Interestingly, the court also withheld Section 230 immunity with respect to Yahoo!’s alleged transmittal of profiles of “actual, legitimate former subscribers whose subscriptions had expired and who were no longer members of the service.” The court reasoned that while such profiles were created by actual, former users of the service (and not Yahoo!), “Anthony posits that Yahoo!’s manner of presenting the profiles – not the underlying profiles themselves – constitute fraud.” (emphasis added). It would have been nice if the court would have elaborated further upon this point.
Anthony next filed a second amended class action complaint which seeks damages in excess of $5 million and replaces the breach of contract claim with a claim for “Breach of the Implied Covenant of Good Faith and Fair Dealing.” Anthony states in this most recent pleading that he “believes even stronger evidence of fraud can be obtained from an examination of Yahoo!’s computer systems.”
The parties have briefed, but the court has not ruled, on the plaintiff’s motion for class certification.
Presumably evolving from two mediation sessions presided over by a former federal magistrate, this past summer the parties entered into a settlement agreement, which provides for the certification of a nationwide settlement class consisting of “all paid subscribers in the United States to Yahoo! Personals (including Yahoo! Personals Premier) between October 1, 2004 and the date of preliminary approval of this Settlement by the Court.” The settlement would, among other things, require Yahoo!, for two years, to maintain a “Report a Complaint” link, render certain inactive profiles unsearchable, and give canceling members the opportunity to delete their profile. Yahoo! also must place $4 million in a common fund for legal fees and distribution to authorized claimants.
In August, Judge Whyte preliminarily approved the settlement and requisite notice to class members. A final approval hearing is scheduled for next Friday, November 30, 2007, and as of this afternoon only one objection appeared on the court’s online docket.
6/16/2010 UPDATE: Here’s a link to the settlement website. The site notes that “The Court held a hearing (the “Final Approval Hearing”) . . . on Friday, November 30, 2007 at 9:00 a.m. The settlement was approved as fair, adequate, and proper. However, appeals were filed. These appeals have now been resolved.”
Earlier this year Judith Smith, Bonnie Lewkowicz and Axis Dance Company filed a class action complaint in a California state court against the owner of Hotels.com. The plaintiffs allege “ongoing discrimination against persons with mobility disabilities who desire to, but cannot, use hotels.com’s worldwide reservation network to make reservations for hotel rooms.” The putative class includes “all individuals in California who are disabled because of a mobility impairment and therefore require an accessible room when they travel, and who have been and continue to be deterred from using hotels.com to make room reservations for accommodations in California because of hotels.com’s refusal to guarantee reservations for accessible hotel rooms.”
Basically plaintiffs allege that while persons with mobility disabilities can request an accessible room via hotels.com, they cannot search the website for an accessible room or be guaranteed that such a room will be available. Instead plaintiffs would have to wait until they arrive and check-in to learn whether a suitable room is an option. Because the plaintiffs cannot stay in a hotel room lacking certain accessibility features, they allege that they cannot use hotels.com. Plaintiffs claim that the same limitations exist when calling hotels.com’s toll-free telephone number.
The complaint alleges two state law causes of action – violations of California’s Unruh Civil Rights Act and Unfair Competition Law – and only asks for injunctive and declaratory relief (plaintiffs likely were determined to keep this case in state court).
Count I alleges that hotels.com’s “failure to allow Plaintiffs and the Class to guarantee accessible hotel rooms violates the Unruh Act by, among other things, denying Plaintiffs and the Class physical accommodations; preventing Plaintiffs and the Class from taking advantage of the reservation services hotels.com provides; and preventing Plaintiffs and the Class from benefiting from hotels.com’s guaranteed low prices.”
Count II alleges unlawful business practices (refers to Count I and alleged violations of California’s Disabled Persons Act) and unfair and deceptive business practices (claims that hotels.com’s website and other advertising is misleading to consumers). On the second point, plaintiffs’ allege that “[t]he website represents that consumers can find all the information they need and guarantee a stay at a hotel by using hotels.com’s services, but those promises do not hold true for travelers who require accessible accommodations.”
In response, Hotels.com has filed a general denial and stated that it expects to seek summary judgment and/or summary adjudication. It also will oppose the plaintiffs’ anticipated motion for class certification.
I’m curious, if someone were to call one of the hotels listed on hotels.com, could he or she get a guaranteed reservation for a room accessible to a person with a mobility disability? If anybody knows and/or tries, please drop me a line. Regardless, plaintiffs allege that they believe that hotels.com “has the ability to provide Plaintiffs and the Class with the search features and the ability to secure guaranteed reservations that they need.” I guess they hedged for a reason, because, according to plaintiffs, among the questions of law and fact common to all class members is “whether hotels.com has the ability to provide the services Plaintiffs need.” I’d certainly be surprised by a finding of liability here if the underlying hotels are unable/unwilling/not obligated to facilitate the features demanded here by plaintiffs. But I have a feeling it may not come to that. Perhaps with the recent certification of two classes in NFB v. Target in mind, last week the parties agreed to mediate their dispute. The mediation is presently scheduled for February 6, 2008 in San Francisco.
Smith v. Hotels.com L.P., California Superior Court, Alameda County, Case No. RG07327029.
Last month I summarized the National Federation of the Blind v. Target Corp. litigation, and noted a recent ruling by Judge Patel certifying two classes in the case.
Last week, presumably with the ADA’s nexus requirement in mind, plaintiffs filed their second amended class action complaint. New plaintiffs named in the complaint include Melissa Williamson (who alleges that the inaccessibility of Target.com has deterred her from shopping at Target stores) and James P. Marks (who echoes Ms. Williamson’s allegation, and adds that such alleged inaccessibility has forced him to have to pay an aide to accompany him when he does shop at Target stores.). Plaintiffs do not raise any new claims in their amended pleading.
Presently the court is considering the parties’ submissions regarding notice to the newly-certified classes.
National Federation of the Blind v. Target Corp., originally filed in California state court and removed last year to the Northern District of California, was one of several cases that finally motivated me to get this blog going (as you may have inferred from one of the bullet points in my first post). Now that Judge Patel has certified two classes in the case, I thought this would be a good time to put together a short (?) summary of the litigation.
Background. The case revolves around the accessibility of the defendant’s website – Target.com – to blind and visually-impaired persons, who “access websites by using keyboards in conjunction with screen-reading software which vocalizes visual information on a computer screen.” Plaintiffs include the National Federation of the Blind (“NFB”), National Federation of the Blind of California and Bruce F. Sexton. They allege in their First Amended Complaint that defendant Target Corporation (“Target”) denies “blind people throughout the United States equal access to the goods and services Target provides to its non-disabled customers through” Target.com. Plaintiffs note that the site “offers products and services for online sale and home delivery that are available in Target retail stores.”
Plaintiffs complain of “thousands of access barriers that make it difficult if not impossible for blind customers to use” Target.com. Specifically, plaintiffs allege that Target.com lacks alt-text on graphics, contains inaccessible image maps, lacks adequate prompting and labeling, denies keyboard access and requires that transactions be performed solely with a mouse. In order to demonstrate a nexus with Target’s stores (see below), plaintiffs also submitted affidavits pertaining to two alleged effects of such inaccessibility – diverted purchasers (persons deterred from going to a Target store after bad experiences with Target.com) and in-store barriers (increased time and expense incurred during in-store shopping as a result of the inaccessibility of Target.com).
Plaintiffs’ Claims. Plaintiffs allege violations of the federal Americans with Disabilities Act (“ADA”) and California’s Unruh Civil Rights Act and Disabled Persons Act (“DPA”). They seek injunctive relief (including an order requiring Target “to take the steps necessary to make Target.com readily accessible to and usable by blind individuals), statutory damages, and declaratory relief. As you by now know, the complaint also asks for certification of a nationwide class and a California subclass.
Rulings on Defendant’s Motion to Dismiss the Complaint.
1. ADA claims
The court noted that “Plaintiffs’ legal theory is that unequal access to Target.com denies the blind the full enjoyment of the goods and services offered at Target stores, which are places of public accommodation.” In other words, the alleged place of public accommodation is the brick and mortar store, not the website, which gets most of plaintiffs’ ADA claims past the pleading stage. However, the court also ruled that “to the extent that Target.com offers information and services unconnected to Target stores, which do not affect the enjoyment of goods and services offered in Target stores, the plaintiffs fail to state a claim under [the ADA].” Accordingly, pages on the website that offer goods for sale that cannot be purchased or ordered at a physical Target store are presumably dismissed by the court’s ruling.
2. State law claims
The court considered, in detail, Target’s argument that application of the California state laws to Target.com violates the “dormant” Commerce Clause. Yet the court explained that “[t]he commerce clause is not necessarily implicated since Target could choose to make a California-specific website.” The court concluded that “it is inappropriate at the motion to dismiss stage to assert a commerce clause violation based on the mere fact that Target, at the remedy stage, may ultimately choose to make its nationwide website accessible to the blind.”
[While the state law claims stand for the time being, Judge Patel probably did Target a favor by putting the Commerce Clause inquiry on hold, thereby allowing the company to raise it again later. Had she been pressed to rule on the issue as a matter of law, Judge Patel likely would have barred the defense. Which of course isn't to say she won't bar it at a future date.]
Ruling on Plaintiffs’ Motion for Preliminary Injunction. The court denied, without prejudice, plaintiffs’ motion for a preliminary injunction (which sought an order “directing Target to take affirmative steps . . . to change the programming of its websites to accommodate the blind.”), noting that “plaintiffs cannot demonstrate that the relevant facts clearly favor a finding that Target.com is inaccessible to the blind.”
Target’s Position. Target “denies the existence of any ‘accessibility barriers’” as alleged in a pre-complaint letter submitted by NFB, denies most of the allegations contained in the complaint, and denies that the plaintiffs “have suffered or incurred any injury or damage in this matter.” The company has also asserted twenty-one affirmative defenses to the plaintiffs’ claims, including disability law-related defenses, unconstitutional vagueness (due process), and violations of the (dormant) Commerce Clause.
Class Definition Ruling. Earlier this year, before ruling on class certification, the court modified the definition submitted by the plaintiffs for the putative nationwide class, essentially requiring a nexus between the website and a physical Target store, as required by the ADA. The new definition is set forth in the next section.
Certification of Nationwide class and California subclass. Last week Judge Patel granted plaintiffs’ motion for certification of a nationwide class (for claims arising under the ADA) and a California subclass (for violations of the two state laws). Unlike the ADA claim, the court concluded, with respect to the claims arising under the two California statutes, that “[n]o nexus to the physical stores need be shown.”
Accordingly, the nationwide class consists of “all legally blind individuals in the United States who have attempted to access Target.com and as a result have been denied access to the enjoyment of goods and services offered in Target stores.” The California subclass consists of “all legally blind individuals in California who have attempted to access Target.com.”
Next up – merits discovery, perhaps followed by a summary judgment motion from Target.
- While considering the dormant Commerce Clause defense in connection with plaintiffs’ motion to dismiss, the court almost seemed to taunt federal lawmakers and encourage more state legislation and/or lawsuits in this area: “[T]he lack of congressional action explicitly addressing accessibility requirements for private websites should not be construed to bar the extension of the protections of California statutes to these websites.”
- I wonder if Target is rethinking its decision to forego a jury trial. While the case has yet to reach the merits, the court comes across as somewhat cold toward the company’s position/sympathetic to plaintiffs, at one point suggesting that Target “seeks to escape the requirements of the ADA.” (emphasis added).
- The dismissal of ADA claims with no nexus to physical Target stores is good news for dot coms with no brick and mortar stores open to the public. However, the court ruled that the state claims here require no such showing. Another reason to keep following this case.
- Again the court has not yet ruled on the merits. However, it did note that one question of law to be resolved is “whether Target has satisfied its obligations under the relevant statutes by accommodating access including, but not limited to, providing a customer service telephone number.” While I know nothing about the accessibility of Walmart.com, and am not familiar with any reasonable accommodation decisions on this issue, Walmart may want to reconsider its recent decision to eliminate telephonic customer service for its website users. Here’s a more recent account of Walmart’s move.
- I am by no means the first person to blog on this case, or the court’s certification decision. Check out recent posts by Eric Goldman and Thomas O’Toole.
- Law.com recently published an interesting article relating to this and similar disputes, identifying several which culminated in settlements.
- The American Bar Association has weighed in on the issue with a resolution relating to accessibility standards for law-related websites.